Hamdan “trial” verdict is in: are we supposed to be happy or sad?

So Hamdan was convicted on the lesser charge of “providing material support for terrorism” and acquitted of “conspiracy” to commit terrorism. You can read more about it here.

So an acquital makes you think maybe these are not kangaroo courts. But they are secret, it is not a jury of his peers, evidence obtained by torture was used against him, and he has been held for nearly 7 years so that whole speedy trial thing doesn’t seem to be working either.

After closing arguments Monday, Charles D. Swift, a former Navy lawyer who has represented Mr. Hamdan for years, said the two-week proceeding here had been a trial that did not follow the American rule of law and that the defense believed American courts would eventually correct the legal errors here. Mr. Swift called the military commission “a made-up tribunal to try anybody we don’t like.”

I am currently reading, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals by Jane Mayer. There is a lot you know, but we learned about decisions very piecemeal, sometimes years after decisions were made. Reading a synthetic account of how within 6 weeks the US government had basically created the “unitary executive” is so horrifying that the last 2 times I have begun to talk to about it with people I have actually cried. I have (to play off the famous Michelle Obama comment) never been so ashamed of my country – the country whose ideals I treasure. But WOW I really thought those checks and balances worked better than this. They had the playbook written and 9/11 provided the opportunity.

According to this account which seems well sourced but is for sure on the anti-Bush/Cheney side of things, Bush/Cheney asserted that the Sept. 14th authorization of use of force passed by Congress allowed the executive branch alone to interpret what was authorized (remember the courts? we used to let them have a say). So then they got my old Civil Procedure Professor John Yoo et al to write the memos that were turned into LAW (remember the congress? we used to let them have a say) when signed as executive orders. And there was even an executive order allowing the memos to be law without the executive signature simply by going through the Office of Legal Counsel at the DOJ (p. 65). (to be fair, some of this was in place during other presidencies, it was just not used like this)

Oh, and the authority for all of this would be John Yoo’s own scholarship, a judicial opinion I have never heard of (ex parte Quirin) and the minority report from Congress in the Iran-Contra affair (oh yes President Reagan could send arms to the Contras that even though there was a law against it and multiple people were convicted of violating the law!!) commissioned by (you guessed it CHENEY!).

Other things I learned:

1. extraordinary rendetion includes involuntary anal suppositories of sedatives and diapering people before whisking them off to the country where they will be tortured in unmarked secret planes.

2. Steve Calabresis (one of the FOUNDERS of the Federalist Society and original scholars pushing a unitary executive theory) said Bush pushed the envelope on this and that as a judge, he would strike some of this stuff down (p. 61).

3. Most military lawyers think this is bulls**t and don’t want “military tribunals” confused with the UCMJ “uniform code of military justice” which they have worked for years to have some principles of the rule of law.

I am not done with the book. I can only read a little at a time. Someday I will read a rebuttal to it, but she has many sourced quotes by people who you would think would be on the Bush/Cheney side and with whom I have little common ground, so I dunno.

I conclude by saying (again) that we will look back at this time like Lincoln’s suspension of Habeas, Japanese internment WWII, Dredd Scott, and Plessy v Furgeson. Only worse by a thousand times.

How do I teach my children to respect the government? All I can do is tell them that the next person will do better, I hope. And we do seem able to survive these things as a nation. It’s too bad we don’t seem as able to learn from them as we shold be. SHAME on us. And again, when do we march on Washington? I feel as though my actions are not in synch with my outrage.

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LB,
Thank you for a moving discussion. There is more to analyze than I can muster late at night in a NYC hotel room (I am at the ABA meetings), but I think the advice I would give on what you tell your children is to seek justice. That is not the same as blind acceptance of “law.” Nor is it the same as the rejection of government, which may do more harm than good. It includes learning about what “justice” means, it includes learning about the ways it can be achieved in particular social contexts.

For us as professionals and social scientists, it means we have to figure out how to have an impact on the course of events. That is tough. Teach-ins? Teaching? Research? Organizing?

Well, as I said, this is more than I can handle late at night in a NYC hotel.

That’s a beautiful comment, Bob (late-night agrees with you?). Thankfully, I have no worries that LB’s sons will know a thing or two about justice.

And I’m with LB on how truly horrifying the current era seems (currently! Without the so-called “benefit of hindsight”). I am, however, a long way from knowing what I should be doing to be heard (especially in my home state, whose Congressional delegation is not known for taking leadership against George Bush).